In Re: Ex parte Application of ENRC Limited Pursuant to 28 U.S.C. § 1782 for Leave to Take Discovery for Use in Foreign Proceedings

Court: U.S. District Court for the Southern District of New York

Date Filed: Dec. 1, 2020

Background: In September 2020, HarperCollins Publishers LLC published “Kleptopia: How Dirty Money is Conquering the World,” a book about corporate corruption by British writer Tom Burgis. The book referenced the Eurasian Natural Resources Corporation Limited, a private natural resources company. In response to the publication of the book, ENRC served a subpoena to HarperCollins, seeking confidential newsgathering materials in its possession.

The subpoena was issued pursuant to Section 1782, a federal statute that allows a party in legal proceedings outside of the United States to apply to an American court to obtain evidence. HarperCollins filed a motion to quash the subpoena.

Our Position: Given the broad discretion afforded courts under Section 1782, the district court should quash the subpoena.

• Confidential reporter-source relationships are central to effective newsgathering.
• The subpoena should be quashed because of its impact on newsgathering.
• Section 1782 prohibits discovery that would violate the reporter’s privilege.
• Section 1782 affords the court discretion to deny discovery because of its impact on First Amendment rights, including reporter-source confidentiality.

Quote: “Permitting Eurasian Natural Resources Corporation (“ENRC”) to obtain confidential newsgathering materials in this case — in circumvention of well-established protections for reporters’ sources and work product — would have a severe effect on the ability of the news media to investigate matters of public concern, now and into the future.”

Related: In 2019, the Reporters Committee and the Media Legal Defence Initiative urged a federal district court to reject a request from a U.S. investor to order the disclosure of a New York journalist’s confidential source. Reporters Committee attorneys argued in a friend-of-the-court brief that “this is exactly the type of case where U.S. courts should consider the strong domestic policies in favor of protecting reporter-source relationships and exercise their discretion to prevent harm to the public’s right to know.”